Standing the test of time?

The Family Law (Scotland) Act 1985 is a familiar, key element of Scots family law, but surprisingly under-researched. Apart from occasional articles and textbook explanations, there is limited academic commentary and little detailed review or analysis of how the statutory principles work in practice.

The need for practice-based research

A perfect jigsaw

The Act is detailed and undoubtedly complex, but also neatly structured, a fine piece of drafting, fitting together like a statutory jigsaw. Each section has its function and place, and all interlink. There are the s 8 orders – the judges’ tools – and the s 9 principles, followed by additional definitions and factors: if a word in s 9 is unclear, look to s 10 for clarification. But how does it work in practice? How often are those detailed sections and subsections used?

International esteem

Academic family lawyers from other jurisdictions, who show an amazing level of knowledge of our statutory provisions, often raise the topic of financial provision on divorce at international gatherings. However, when they ask for recent examples of pension sharing orders, or of provision against serious financial hardship, such instances are not easy to find.

Privatised principles

In the main, divorcing couples make agreements; what then is the Scots law on financial provision? Is it as set out in the 1985 Act, or is it found in the system of private ordering of ante-nuptial marriage contracts, separation agreements or minutes of agreement, all individually and privately negotiated? Scots law may offer a very clear and well respected statutory framework, but what happens in practice if couples do not bring their claims to court? Such agreements may well reflect the provisions of the 1985 Act – but we need evidence.

Unjustified criticism?

No examination of financial provision would be complete without mentioning the now infamous comments of Lord Hope in Miller and McFarlane [2006] UKHL 24. Such an attack on our much-admired system, especially when comparing the English system of ancillary relief, engenders indignation; but might the Scottish system be harsh on “homemakers”? The 1985 Act was conceived at a time of optimism of equality of pay, treatment and parenting. The model of equal childcare and easy movement from homemaker to active employee, within a maximum of three years, may still be unrealistic. To answer the criticisms of Lord Hope we need more detailed evidence.

Two research projects

To address these issues two separate, but linked, collaborative projects were developed. The first study, “All Settled?”, funded by the ESRC, focused on separation agreements. Data was collected from a random sample of 600 agreements registered in the Books of Council & Session in 2010. Then 30 parties who had made agreements, and 15 family law solicitors, were interviewed. There was anecdotal understanding that more people were making agreements and fewer going to court. Was this true? The aim was to collect research-based evidence to explore what appeared in these agreements. Were such private agreements informed by the principles of the 1985 Act?

Our current research, “Principles in Practice: financial provisions on divorce under the Family Law (Scotland) Act 1985”, funded by the Nuffield Foundation, has set out to explore how the statutory principles are used in court-based settings. With no detailed civil justice statistics to indicate, for example, how many applications are made for financial provision on divorce, there are many gaps in our knowledge about court actions.

The current research

As a socio-legal study, the current research explores the interrelationship between the legislation and aspects of society, asking how the law as a system of social rules interacts with other systems of social rules found within that society. The 1985 Act seems almost tailor made for such a socio-legal study, because on the one hand there are the financial orders set out in the legislation, while on the other there are the principles setting out the norms of society within which the provisions operate, and it is those five underpinning principles that make this Act so unusual. There is a largeness of spirit contained within these principles because, regardless of whose fault led to the divorce, any financial order must be fair; have regard for any economic advantage/ disadvantage; ensure a fair sharing of caring for the children; enable adjustment to the new economic circumstances post-divorce; and have regard to the possible serious financial hardship engendered by those new circumstances.

It could be argued that the 1985 Act is as much a piece of social policy as it is a piece of legislation, which makes it most unusual. Easy to get carried away, admiring the clarity of the drafting, the principled nature of its financial orders – are we seeing it through rose-tinted spectacles? Our plan is that this research will investigate how it has stood the test of time and how it stands up to life in 2014.

It does seem incredible that the principles remain meaningful after almost 30 years considering the radical changes in society over that period, especially in how we now view families, the rise in the number of step-families or blended families, marriage itself once common now not so much, divorce once something to be ashamed of, and cohabitation once viewed as living in sin. Such emotive descriptions serve as a useful reminder of what 1980s Britain was actually like, because we easily forget. On the face of it, the long-term survival of any principles connected to families and marriage should be a minefield, and yet s 9 survives. Why? How? Is it truly still useful? Our current research intends to find out.

Structure of the project

What, then, is the best means of finding out? Our approach is that of grounded theory, a research method that collects data, begins analysing that data for emerging themes then looks into those themes very closely. While the researchers may well begin the work with ideas they wish to explore, those ideas are not set in stone.

There is a type of research, familiar to most, which begins with a hypothesis, a specific, testable prediction, collects data, then tests that hypothesis against the data – this is not the way we are working. The key aspect of grounded theory is that themes emerge from the research itself and are explored in ever-greater detail once they have been identified, what is called progressive focusing.

So, our methodology began with a very wide focus establishing the historic context of the Act – why and from where it developed, why it took its particular form. This, of course, introduces the work and mind of Eric Clive, instrumental in the development of this legislation.

Fieldwork

That wide focus narrowed a little for the next step, a survey of 200 published court cases of divorce involving financial provisions. The cases, randomly chosen from various databases, spanned the decades of the operation of the Act and covered cases of first instance and appeals in sheriff courts and the Court of Session. We see which of the financial provisions have been awarded most frequently which seldom used, which principles are invoked most frequently, which seldom mentioned or, indeed, used by implication. The survey established a foundation of courtroom practice that forms the baseline for the subsequent interviews.

This mix of quantitative survey data and qualitative interview data is another strength of the methodology – beginning with the facts and figures established from the survey, flesh is put on the bones of those statistics through the reflections of those practising in the field.

Survey topics

In the analysis of the 200 cases a range of survey topics or codes was developed, and, true to grounded theory, some of these topics were established from the outset but others developed as the analysis was underway. The topics included: basic facts of the cases; which financial orders were sought and which granted; which principles were used to justify the orders; rights of third parties; financial agreements entered into by the parties; and developing themes such as equality, fairness, readjustment, hardship, reasonableness, and clean break.

Interviews

So, the focus began very wide and gradually narrowed, until in the last stage of the fieldwork, the focus narrows considerably onto the views of specific practitioners who use the Act. The research team is in the middle of this work with preparations underway for the final phase of the fieldwork, the interview stage. There will be 30 interviews conducted with a range of legal practitioners, namely advocates, judges, sheriffs and solicitors. The aim is to give a more exact picture of how the Act operates in practice by documenting the detail of the experiences and perspectives of legal practitioners in relation to the principles and financial provisions of the Act.

Outline findings from the studies

A clear trend towards private settlement

There were 10,000 divorces or dissolutions granted in 2010 and an estimated 5,000 separation agreements registered in that year, making a ratio of approximately 1:2. Similar research, relating to agreements registered in 1992, found an estimated number of 3,000 agreements as compared with about 12,500 divorces, a ratio of 1:4, showing a significant increase in the use of agreements over that period.

Equal sharing

Separation agreements are partial snapshots; they may not include all the couple’s assets and rarely include valuations or the parties’ employment status. It is difficult, therefore, to establish whether the provision is for equal sharing. In interviews with both parties and solicitors, however, there was strong endorsement of equal sharing. In the current research, there is some indication of departure from equal sharing, with unequal sharing being sought and granted in 21% of the sample and sought but not granted in 19%.

But highly unequal responsibility for children

The 600 separation agreements studied indicated that residence was agreed in 188, with residence given to the mother in 90%, to the father in 4% and joint or shared in 6%.

Periodical allowance

Periodical allowance was referred to in 28% of the sampled separation agreements, but in most it was mentioned only to be excluded. Some level of periodical allowance was agreed in only 5% of the sample. This showed a clear decline from the already low figure of 10% found in the 1992 research. In our current research, periodical allowance was sought and granted in 26% of cases and sought but not granted in 11%.

Pensions

Pensions were mentioned in 57% of the 600 agreements, but again mainly to exclude any claim. Pension sharing of some form was agreed in only 11%. Early analysis from our current research shows a similarly low level of pension sharing, with a s 8(1)(aa) order being sought and granted in 5% and sought but not granted in 2.5%.

Final reports

Our work is ongoing. Full results of our second project will be available in November 2015, while the first project is available at www.crfr.ac.uk